Relates to time of service, time in which defect in form must be raised, copy of proposed amended pleading, and the time of voluntary discontinuances

This measure would make several technical amendments to the CPLR, in relation to time of service; time in which a defect in form may be raised; amended pleadings; and the time in which a voluntary discontinuance may be obtained without court order or stipulation.

I. Time of service. We recommend amendment of CPLR 306-b to correct a time of service problem that can occur when a court order extending time for filing is granted pursuant to CPLR section 304. CPLR section 306-b presently requires service of the summons and complaint, summons with notice, third-party summons and complaint, petition with notice of petition or order to show cause within 120 days after filing, with appropriate modifications where the statute of limitations is four months or less. With but one exception, this is fully consistent with the provision of section 304 that an action or proceeding be commenced by filing, since valid service cannot be made until the action has been commenced and that occurs upon filing.

The exception occurs when, pursuant to section 304, a court finds that circumstances prevent immediate filing and signs an order requiring the subsequent filing at a specific time and date not later than five days thereafter. In this instance it is the signing of the order, and not the filing of the pleading that commences the action or proceeding. This exception can be and often is utilized in situations where a party requires a restraining order to prevent the occurrence of an event on a holiday, weekend or after business hours, when filing cannot occur but immediate service is critical. In this limited situation, although the action or proceeding has been commenced, service often must be made before the order can be filed. At least one court has held that, under these circumstances, service was ineffective because section 306-b mandates service after filing, not after commencement of the action.

A simple amendment to section 306-b, to provide that service be made within 120 days "after commencement of the action or proceeding," should rectify the problem created by the section 304 exception, without having any adverse effect upon the more usual situation where the action is commenced by filing of the pleading. In either event, whether the action is commenced by filing or by the signing of all order which extends the time for filing, post commencement service will occur.

II. Time in which a defect in form may be raised. We propose an amendment to CPLR rule 2101(f) to increase the time for raising objections to defects in form. Currently, the time in which objection to a defect in form must be raised is only two days from receipt of the paper objected to. We believe that the two-day period is an unreasonably short period of time for counsel to review a paper served and raise objections to it where necessary. Accordingly, we urge that the period of time be amended from "two" to "fifteen" days. The effect of this change will be that the focus of any debate over the form of a paper will concern solely the proper form and the underlying facts, not the number of days allowed for objection.

III. Amended pleadings. We recommend amendment of CPLR rule 3025(b) to require a party moving to amend its pleadings to attach a copy of the proposed amended pleading to its motion to amend that pleading, clearly showing the proposed changes to the pleading. Many federal courts by local rule require the movant to attach the proposed pleading and to show by redline the changes in the complaint or answer that the movant proposes.

IV. Time in which a voluntary discontinuance may be obtained without court order or stipulation. Lastly, this measure would amend CPLR 3217(a)(1) to extend the time period in which, at the outset of a case, a voluntary discontinuance may be obtained without need for a court order or a stipulation of settlement. This change would give maximum flexibility to parties who may want to settle claims very early in the litigation process.

The need for flexibility becomes particularly acute in the early stage of a case. At present, a party alleging a cause of action in a complaint, counterclaim, cross-claim, or petition may only unilaterally discontinue it without court order or stipulation by serving and filing the requisite notice on all parties "at any time before a responsive pleading is served or within twenty days after service of the pleading asserting the claim, whichever is earlier..."CPLR 3217(a)(1). The proponent of the claim has a very limited period of time to exercise his or her unlimited right to discontinue the cause of action. The 20-day limitation applies even: (1) if the responsive pleading has not yet been served; and (2) if the time to respond is 30 days. See CPLR 3012(c). In addition, the service of an amended pleading pursuant to CPLR 3012(c) will not preclude the application of the 20-day period. See Fox v. Fox, 85 A.D.2d 653 (2d Dept. 1981). Effectively, no party may unilaterally discontinue an action by notice beyond 20 days after service of the pleading asserting the claim.

We recommend that CPLR 3217(a)(1) be amended to permit a voluntary discontinuance without court order or stipulation before the responsive pleading is served or within 20 days after service of the pleading of the claim, whichever is later.

This modification will also bring the CPLR into line with the Federal Rules of Civil Procedure, which permits a party to discontinue any time before an answer is due. See Federal Rules of Civil Procedure 41(a). Apparently, when the Civil

Practice Act in New York was modified by the enactment in 1962 of the CPLR the flexibility of the prior practice was eliminated. That flexibility should be reinstated.

It is necessary to retain the provision of the rule which permits a voluntary discontinuance without court order or stipulation"... within 20 days after service of a pleading asserting a claim" to address the scenario reflected in CPLR 3011 by which a cross-claim may be asserted, the defendant/proponent does not demand a reply and no responsive pleading is required. Without the 20 day language, there would be no provision for the voluntary discontinuance of a cross-claim.

This measure would take effect January first next after it shall have become a law.

2009-10 Legislative History:

S.5960 (Senator Schneiderman)- Codes A.8318-A (M. of A. Zebrowski) - Codes